WVC 62 - 12 - 2
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any
felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.

(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this section
shall apply to an accessory before the fact or a principal in the
second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the first
degree used, presented or brandished a firearm.

(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be
applicable unless such fact is clearly stated and included in the
indictment or presentment by which such person is charged and is
either: (i) Found by the court upon a plea of guilty or nolo
contendere; or (ii) found by the jury, if the matter be tried
before a jury, upon submitting to such jury a special interrogatory for such purpose; or (iii) found by the court, if the matter be
tried by the court, without a jury.

(2) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:

(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;

(B) Shall apply with respect to the contents of any indictment
or presentment returned on or after the first day of August of that
year irrespective of when the offense occurred;

(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to such jury on or after the first day of August of
that year or to the requisite findings of the court upon a plea of
guilty or in any case tried without a jury: Provided, That the
state shall give notice in writing of its intent to seek such
finding by the jury or court, as the case may be, which notice
shall state with particularity the grounds upon which such finding
shall be sought as fully as such grounds are otherwise required to
be stated in an indictment, unless the grounds therefor are alleged
in the indictment or presentment upon which the matter is being
tried;

(D) Shall not apply with respect to cases not affected by such
amendment and in such cases the prior provisions of this section
shall apply and be construed without reference to such amendment;
and

Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
be proved beyond a reasonable doubt in all cases tried by the jury
or the court.

(d) For the purpose of this section, the term "firearm" shall
mean any instrument which will, or is designed to, or may readily
be converted to, expel a projectile by the action of an explosive,
gunpowder, or any other similar means.

(e) In the case of any person who has been found guilty of, or
pleaded guilty to, a violation of the provisions of section twelve,
article eight, chapter sixty-one of this code, the provisions of
article eight-c or eight-b of said chapter, or under the provisions
of section five, article eight-d of said chapter, such person shall
only be eligible for probation after undergoing a physical, mental
and psychiatric study and diagnosis which shall include an on-going
treatment plan requiring active participation in sexual abuse
counseling at a mental health facility or through some other
approved program: Provided, That nothing disclosed by the person
during such study or diagnosis shall be made available to any
law-enforcement agency, or other party without that person's
consent, or admissible in any court of this state, unless such
information disclosed shall indicate the intention or plans of the
probationer to do harm to any person, animal, institution or
property, in which case such information may be released only to
such persons as might be necessary for protection of the said person, animal, institution or property.

Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, two thousand six, the Secretary of the Department of
Health and Human Resources shall propose rules and emergency rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.

(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen, article
eight, chapter sixty-one of this code, or of a felony violation
involving a minor of section six or seven, article eight, chapter
sixty-one of this code, or of a similar provision in another
jurisdiction shall be required to be registered upon release on
probation. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this subsection shall also
be registered upon release on probation.

(g) The probation officer shall within three days of release
of the offender, send written notice to the State Police of the
release of the offender. The notice shall include:

(1) The full name of the person;

(2) The address where the person shall reside;

(3) The person's social security number;

(4) A recent photograph of the person;

(5) A brief description of the crime for which the person was
convicted;

(6) Fingerprints; and

(7) For any person determined to be a sexually violent
predator as defined in section two-a, article twelve, chapter
fifteen of this code, the notice shall also include:

(i) Identifying factors, including physical characteristics;

(ii) History of the offense; and

(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.

Note: WV Code updated with legislation passed through the 2016 Regular Session
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